Citation Nr: 1801240 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-24 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as due to the service-connected right shoulder disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), including Military sex trauma (MST). REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty from September 1956 to November 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2012 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2015, the Veteran testified at a hearing before a Decision Review Officer at the Portland, Oregon RO. An informal conference report of this hearing is of record. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on these issues on appeal. In a September 2012, the Veteran was informed that after exhausting all efforts to search and obtain his service treatment records (STRs), further attempts would be futile. See September 2012 Formal Finding on the Availability of Federal Records. This VA memorandum specified that a January 2011 Personal Information Exchange System (PIES) response indicated that a search for hospital records from Fort Benning from August 1959 to October 1959 yielded negative results from an October 2010 VA request. However, at his Board hearing, the Veteran testified that during his visit at Fort Benning Hospital, he underwent an examination of his left shoulder in the 1950s. See November 2017 Videoconference Hearing Transcript. He further indicated that this hospital informed him that they were in possession of those medical records, including an x-ray, even though they are in "picture type." Id. Given the Veteran's competent, lay statements about the existence of his medical records at Fort Benning from the 1950s, and that the search for hospital records from Fort Benning was only undertaken from August 1959 to October 1959, a remand is required for the RO to undertake an additional search for his records from the period prior to August 1959, while he was in active service, and/or to obtain all possible outstanding medical records, and if necessary, a VA examination and nexus opinion on his left shoulder disability. Furthermore, the evidence of record reflects a diagnosis of an acquired psychiatric disability. See e.g. February 2012 Mental Health Counseling Note (reflecting a primary diagnosis of PTSD for the Veteran's visit; and that the Veteran presented with symptoms of PTSD.). However, despite evidence of this current diagnosis, as well as competent lay evidence of an in-service stressor, see e.g. November 2017 Videoconference Hearing Transcript, the Veteran has not been afforded a VA examination for his mental disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, a remand is also warranted for a VA examination and a nexus opinion on the nature and etiology of his acquired psychiatric disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Conduct another request in an attempt to obtain either service treatment or hospital records from Fort Benning Hospital from the period between September 1956 to August 1959. 2. Schedule the Veteran for a VA examination on his left shoulder with a VA orthopedist to determine the current nature and etiology of his left shoulder disability. The VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left shoulder disability is related to the Veteran's time in service. b. Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left shoulder disability is due to his service-connected right shoulder disability. c. Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left shoulder disability has been aggravated by his service-connected right shoulder disability. "Aggravation" means an increase in severity of the disorder beyond any medically established baseline. The appropriate section of the Disability Benefits Questionnaire pertaining to aggravation opinions should be filled out for this purpose, if possible. The VA examiner must consider all lay statements from the Veteran about the onset and symptomatology of his left shoulder disability, including and not limited to his competent lay statements from his November 2017 Videoconference hearing. The VA examiner must construe all disclosures and statements from the Veteran as competent lay statements, unless the VA examiner has good reason to believe that the information being provided by the Veteran cannot be reliable. d. If it is determined that there is another likely etiology for his left shoulder disability, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the VA examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Also, schedule the Veteran for a VA examination to determine the current nature and etiology of his acquired psychiatric disability. The VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Indicate all psychiatric disabilities found to present, to include PTSD. b. Then, for EACH disability, determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability is related to his active service. c. Given the unavailability of service treatment records, the VA examiner must consider and discuss all lay statements from the Veteran. The VA examiner must construe all disclosures and statements from the Veteran as competent lay statements, unless the VA examiner has good reason to believe that the information being provided by the Veteran cannot be reliable. d. If it is determined that there is another likely etiology for his acquired psychiatric disability, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the VA examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. After ensuring compliance with the above-mentioned actions, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response from the Veteran or his representative. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).